Enshrining Religion in the Egyptian Constitution The new constitution restricts public liberties, human rights, and civil society The constitution should protect freedom, not those who oppress it

The Cairo Institute for Human Rights Studies rejects the underlying philosophy and vision of the constituent assembly’s latest drafts of the chapter on Public Rights, Liberties, and Duties, and the chapter on the Fundamentals of State and Society. Thus far, the constitution tends to restrict public freedoms and diminish human rights, and the text reveals a lack of understanding of the basic concept of a modern democratic state. Efforts to establish a theocratic state are apparent. The constitution grants the religious establishment political powers, and based primarily on the restrictions of both public and private liberties. The constituent assembly has also adopted articles that allow for a plurality of legal systems to regulate Egyptians’ affairs, based on religious and sectarian considerations. This is a dangerous step toward the “Lebanon-ization” of the country and the transformation into a sectarian state. The CIHRS fears that the constituent assembly’s proposals represents separatist tendencies that have led to religious persecution now visible in Sinai, which threatens to have grave consequences for citizens’ rights and liberties—the same rights and liberties the people wrested away in the January 25 revolution after a decades-long struggle and enormous sacrifices.

The deliberations of the constituent assembly reveal a deep-seated hostility to freedom of the press. The draft constitution still allows for the warning, suspension, and closure of newspapers, which negates the bitter struggle waged by journalists and civil society against these same unfair collective sanctions. It should be noted that the constituent assembly first forwarded a reasonable draft of Article 12 in the chapter on Public Rights, Liberties, and Duties that only permitted charges in publication crimes to be filed by direct litigation and abolished liberty-depriving penalties for these crimes. But the assembly retracted the text after the official spokesman for the Muslim Brothers, a member of the constituent assembly, rejected it.

The draft constitution restricts the right to information on grounds of “national security,” a vague term often used by the state to deny citizens, especially particularly journalists and researchers from obtain or disseminating information. The draft constitution also seeks to restrict freedom of expression on the internet by stipulating that the establishment of electronic media shall be regulated by law; this coincides with calls from political parties and groups to restrict online expression. It is worth noting that the articles on the construction of houses of worship and peaceful demonstration authorize the legislator to place restrictions on the exercise of these rights.

Regarding the section on the freedom of association, the constituent assembly has adopted the State Security approach of the Mubarak era, seeing a free civil society as incompatible with state sovereignty. This same claim was often used before the revolution in media campaigns to isolate civil society groups and justify their suppression, on the grounds that they served foreign entities. The irony is that Mubarak never dared to enshrine such restrictions in the constitution or the law, while the constituent assembly established after a revolution against Mubarak and his constitution is doing just that. This article allows any government to take preemptive steps against civic and rights activist under the protection of the constitution. The article was drafted specifically to restrict independent human rights organizations and justify their closure.

The draft constitution states, “The state is obligated to take all legislative and executive measures to entrench the principle of women’s equality with men in political, cultural, economic, and other spheres of life, provided it does contradict the provisions of Islamic Shariah.” This text, firstly, contradicts Article 2 of the constitution, which states that the principles, not the provisions of Islamic law, are the primary source of legislation. Secondly, it reveals a deep-seated desire to undermine the principle of equality and diminish women’s rights. The article would allow the legislator to adopt Islamic legal rulings, which comprise an enormous number of jurisprudential texts of varying degrees of strictness, which by their very nature are human, rather than divine judgments, issued in other times to address the problems of different societies at diverse levels of political, economic, social, and cultural development. In short, it would subject the legislative process to the whims of religious jurist and their personal and political proclivities. Furthermore, this article would impose provisions of Islamic law on non-Muslim women, which contradicts another articles permitting non-Muslim women to appeal to their own religious laws in personal status matters.

The draft constitution restricts the Freedom of Belief by limiting the right to practice one’s religion to the adherents of Abrahamic religions, thus discriminates against citizens on the basis of religion and undermines equal citizenship. Although the primary objective of any constitution is to regulate the relationship between state and society, this creates a method to repress individuals and groups promoting the ideologies of the faction with a political majority in the constitutional assembly.

In the chapter on the Fundamentals of State and Society, the draft constitution designates a new role for al-Azhar, making it the final arbiter in the interpretation of the principles of Islamic Shariah as the primary source of legislation. The draft also describes al-Azhar as “the ultimate state authority on all issues related to Islamic law, in accordance with Sunni orthodoxy.” This formulation is incompatible with the structure of the modern democratic state. If adopted in the final draft, the new constitution will be the first constitution to indoctrinate a particular religious school of thought for the Egyptian state.

The text gives the religious establishment power over the democratically elected parliament and competent judicial bodies. It will also turn al-Azhar into a site of political conflict and competition, as the legislative process can be controlled through it. The status of al-Azhar as a final authority on the interpretation of the principles of Islamic Shariah establishes a religious state that undermines human rights and democracy, recalling the medieval church’s role in the public sphere in Europe and the use of the religious establishment by dictatorships likes Iran to strike out against dissidents.

It is worth noting that the proceedings of the Constituent Assembly were not transparent, neither in its dealings with the public nor in the internal relationships between the thematic committees, the drafting committee, and general secretariat. Nor has the assembly respected the internal division of labor it adopted for itself, as evidenced by the assembly’s website, the sudden changes in certain articles without the knowledge of members (according to complaints by some members), the inconsistencies between proposed articles, and the contradictory statements issued by senior officials appointed by the assembly itself. Taken together, this does not create the healthy climate needed to draft Egypt’s post-revolution constitution. This is in addition to the purely perfunctory nature of the hearings held by the assembly with various parties, among them advocacy groups, in and outside Egypt. The assembly did not seriously engage with the opinions, ideas, and proposals of the participants, making the hearings meaningless and futile.[1]

With all due respect for all members of the constituent assembly, the CIHRS observes that the major problem of the assembly is not only that it does not adequately represent all segments of Egyptian society, but that it does not include even a minimum number of professionally, academically, and culturally qualified persons needed to write the constitution, regardless of their political and religious backgrounds. It seems as if the standard adopted by those who selected the assembly—the majority in the dissolved People’s Assembly and Shura Council—specifically sought to disqualify those suited to the task. An assembly formed by ruling out those in the country most apparently qualified for the job is an assembly that is set to fail even before it begins. During negotiations with four members who withdrew from the assembly, undertaken to avoid the withdrawal of even more members, the assembly agreed to form an external consultative technical committee of ten experts to review and edit the draft constitution before a vote by the constituent assembly. A review of the names of these ten experts naturally raises the question of why the parliamentary majority disregarded these or other qualified experts for membership in the assembly itself.

The majority of members of the People’s Assembly and the Shura Council were deliberated, when selecting both the first constituent assembly (dissolved by court order) and the second assembly, in choosing several figures known for and documented as saying that they do not believe in democracy or the need for a civil constitution, that they do not recognize Egypt’s commitments under international human rights conventions, that they do not believe Egyptians should have equal rights and duties regardless of religion, belief, confession, ethnicity, or gender, or that do not recognize the unlawfulness of the rape of children under any circumstances.

The CIHRS believes that having representatives of such views in the constituent assembly, regardless of political or religious background, explains the assembly’s adoption of singular ideas, articles, and assumptions not seen in Egypt’s former constitutions or those of other countries, such as the notion that God needs an article in the constitution to protect him. The same goes for the use of terms and concepts, like “consultation” or “the consultative state,” that have no defined legal or academic meaning, which turns constitutional guarantees into toys to be manipulated by the whims of religious jurist and their narrow interests. The sizable representation given to these views also explains the rampant hostility to the rights of women and children, freedom of the press and information, the right to citizenship, civil society freedom, and religious liberties. Indeed, guarantees that protection of these rights are weaker in the draft constitution than in the constitution against which the January 25 revolution rose up. This situation prompts the question: does the president’s office intend to ask the UN to withdraw Egypt from several international human rights conventions or freeze the Egyptian government’s commitment to them if the draft constitution is adopted?

The constituent assembly’s biggest insult to the Egyptian people may be to justify the horrifying regressive nature of their constitution as an expression of “Egyptian culture.” Those propagating such a notion have perhaps not had the opportunity to experience and understand the fertility and richness of Pharaonic, Nubian, Coptic, Arab, and Islamic cultures and their historical contributions to the culture and spirit of contemporary Egyptians.

Egyptians need a constitution that rises to meet the richness of Egyptian culture and civilization rather than taking them to the depths of backwardness and tyranny and undermining national cohesion and unity. Egyptians need a constitution that protects the dignity of citizens, their rights, and their basic liberties, rather than squandering the precious sacrifices made by the Egyptian people in freeing themselves from the yoke of despotism and secure their rights and freedoms.

Egyptians need a constitution that protects freedom, not those who seek to oppress it.

[1] For more details, see the statement released by Egyptian advocacy groups on their participation in the hearings held by the constituent assembly: <https://cihrs.org/?p=3594&lang=en#>.